Mediation is a good way of resolving employment disputes. It is cost-effective and can lead to better outcomes than tribunals if both parties fully commit to the process, writes Adam Bernstein

As any employer who has been involved in an employment dispute will know, those that end up before an Employment Tribunal can be costly, time consuming and distracting to resolve. This is a key reason why more are looking to mediation to resolve disputes with employees.

Firms that prefer to have their day in front of a judge will pay for the privilege. Solicitors can charge from £3,500+VAT and disbursements to handle an unlawful deduction of wages claim, more for an unfair dismissal claim, and in excess of £9,000+VAT and disbursements to defend a discrimination claim. On top of that is management time and any awards made in favour of the claimant.

But regrettably some firms do end up before an Employment Tribunal. There were, at the time of writing, 330 decisions relating to pharmacy and 84 decisions for chemists on the Government’s Employment Tribunals decisions website.

The point of mediation

In describing the mediation process, Mali Smith, a legal director and mediator at Wright Hassall, says that it is voluntary, confidential and uses a third party to try to reach an agreed resolution.

As Smith outlines, mediators are independent, professionally trained individuals, many of whom are lawyers. Mediators do not offer any opinions on the dispute; they are there purely to facilitate a solution and help parties reach an agreement that works for all.

The benefits of mediation for employers can be substantial. Firstly, costs are generally a lot lower than when pursuing a tribunal claim. Next, the process can be considerably faster – there is no tribunal backlog to negotiate. Thirdly, mediation is confidential; the result is not made public.

The proceedings

With the benefits laid out, Smith is keen to emphasise that a mediator will not advise either party within the mediation. As she says: “Mediators are impartial and both parties are encouraged to speak openly; the mediator will only disclose information to the other side if agreed.”

She adds that the mediator will stress the importance of both parties taking legal advice to complement the mediation – this is why most are accompanied by their legal advisers. All need to understand the legal consequences of any agreement they make.

As to how the process works, parties are invited to provide a short summary of their case for the other side and for the mediator. They agree a suitable venue, which must have at least three rooms.

The mediator will circulate a mediation agreement, setting out the terms of the mediation, including that of confidentiality. Each party then retires to their respective rooms and the mediator moves between them, questioning their cases and drawing out the salient facts.

Because the mediator must remain neutral, questions will be open and will not allow the mediator to offer a solution, says Smith, adding: “Any solution must come from the parties themselves with assistance of the mediator.”

Preparation is key

No one in their right mind would walk into a courtroom unprepared and mediation is no different. So, Smith’s advice here is clear: “Parties should start their preparation with a position statement and evidence that outlines their case and which offers a solution that looks into the future.”

From her standpoint, the aim is to reach a resolution so that a compromise is inevitable. However, Smith knows from experience that not all mediation leads to a settlement or resolution. She adds: “Sometimes, though, after mediation, parties will meet and sign a settlement agreement between themselves. Mediation can lead to ‘out of the box’ solutions being discussed at mediation that lead to a resolution.”

Summary

In short, mediation should be, and is being, actively encouraged as a way of resolving employment disputes. It is cost-effective and can produce a better outcome if both parties fully commit to the process.

• Find a mediator: Civil Mediation Council civilmediation.org
• EmploymentTribunal decisions: gov.uk/employment-tribunal-decisions 

The profession in the spotlight

The May 2019 case of Ms A Hussain v Barkerend Pharmacy Ltd saw the claimant awarded £6992.92 pay in lieu of holiday accrued but untaken on termination of her employment.1 Interestingly, the pharmacy didn’t attend the hearing.

In Mr O Isoze v Lloyds Pharmacy Limited, June 2022, the claimant sought a ruling for unfair dismissal.2 Again, little detail about the case was given, but his claim was upheld and he was awarded £10,500.

However, some claims are lost because claimants fail to attend the hearing. This is what happened in the May 2023 case of Mr Iain Hamilton v Newline Pharmacy, where Hamilton alleged breaches of his rights in relation to his contract of employment, unfair dismissal, unlawful deduction from wages, and a written pay statement.3 The judge said the claims were “dismissed because of the claimant’s failure to attend the hearing and without providing a reasonable excuse for such failure to attend.”